The court has before it a motion by defendant Wells Fargo Bank for partial summary judgment, or in the alternative for summary adjudication. The court has read and considered all of the papers and has heard the argument of counsel. Following argument the court took the matter under submission and now renders its decision as follows.

The environmental contamination that is the subject of this case was caused by a lengthy period of "cattle dipping" that occurred on property known as the Markham Ranch in Monterey County. Cattle dipping is the practice of dipping cattle in a tank of toxic chemicals in order to free the livestock from pests. Apparently, the toxic chemicals spilled onto the property. The spillage contaminated a twelve (12) acre parcel of the Ranch.

Castlerock Estates Inc. ("Castlerock") is the current owner of the Markham Ranch. Castlerock filed this action pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607 et seq. Castlerock seeks to recover cleanup costs from Wells Fargo Bank ("Wells Fargo"). Wells Fargo is the successor bank to Crocker Bank ("Crocker"). Crocker was the bank that acted as conservator and then executor for one of the prior owners of the Ranch, Lucile Markham. The property that made up a large portion of Lucile Markham's estate became contaminated, possibly during the time Crocker held fiduciary responsibilities as conservator or executor. When purchasing Crocker's assets, Wells Fargo also accepted liability for Crocker's negligent acts, wrongdoings and other responsibilities. It is through this tenet of corporations law that Wells Fargo now faces potential financial responsibility for Crocker's alleged liability under CERCLA.

Wells Fargo brings this motion on the ground that Crocker was not an owner or operator of the Markham Ranch when the land was allegedly contaminated by cattle-dipping. Wells Fargo claims it is, therefore, not liable under CERCLA.

FACTUAL BACKGROUND

The court has been provided with the following history of ownership: Walter and Lucile Markham owned real property known as the Corral de Tierra Ranch. They later renamed the property the "Markham Ranch." Lucile Markham and Walter Markham owned this property together as community property.

When Lucile Markham became ill with Parkinson's disease in 1969, Crocker acted as conservator for her estate. The conservatorship lasted from June 20, 1969 until her death on June 29, 1977. After her death, Crocker Bank served as the executor of Lucile Markham's estate. On May 30, 1986, Wells Fargo merged with Crocker Bank.

Evidence has been presented that, from 1969 to 1974, Crocker, as conservator and later as executor, held an undivided one-half community property interest in the Markham Ranch, and became involved in the operation and control of the property. Other evidence suggests that during the conservatorship and executorship periods, Walter Markham retained exclusive possession, management and control of the entire property.

During this period, on March 13, 1974, Walter Markham, individually, and Crocker, on behalf of Lucile Markham, sold the Ranch to a company named Rancho Corral de Tierra, Inc. ("Rancho Corral"). After the sale, the conservatorship estate held one-half of Rancho Corral's down payment and a one-half interest in the promissory note executed by Rancho Corral. On October 1, 1974, Rancho Corral defaulted on its obligations. In March of 1976, Walter Markham, individually, and Crocker, on behalf of Lucile Markham, reacquired the Ranch. After Lucile Markham died on June 29, 1977, Crocker was appointed as the executor of her estate. The appointment was effectuated on July 22, 1977. On August 25, 1978, Walter Markham and Crocker Bank, as executor for Lucile Markham, sold the Ranch to Anthony and Salvatore Palma.

On June 22, 1979, the court entered the Judgment Settling First and Final Account and Report of Executor and Final Distribution under the Will. Said Judgment closed the Estate of Lucile Markham and finalized the testamentary trust of Lucile Markham. See Judgment Settling First and Final Account (Exh. W. to Brock Decl.) at MR000789, MR000792, MR000801. On December 30, 1980, Crocker Bank was discharged as executor and "released from liability." See Final Discharge (Exh. X to Brock Decl.) at MR000836. See Cal. Prob.C. § 12250.

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if no factual issues exist for trial. To survive a motion for summary judgment, the non-moving party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In addition, the non-moving party must demonstrate that the factual dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.

The standards and procedures applicable to motions for summary judgment also apply to motions for summary adjudication.

ISSUES PRESENTED

1. What is the test for liability under CERCLA?

2. How is the liability test applied to the case at hand?

i. When did the cattle dipping occur?

ii. Do questions of material fact remain as to the issue of whether Crocker, as conservator/executor, was an "owner" of the Markham Ranch for CERCLA purposes at the time of the dipping activity?

iii. Do questions of material fact remain as to the issue of whether Crocker, as conservator/executor, was an "operator" of the Markham Ranch for CERCLA purposes at the time of the dipping activity?

3. If Crocker is liable under CERCLA, can Castlerock reach the corporate assets of Wells Fargo?

4. Do the state law claims fail?

DISCUSSION

1. What is the test for liability under CERCLA?

42 U.S.C. § 9607 provides as ...

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